GARY ALLEN WHISLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a hearsay lab report alone cannot be the basis for finding a violation of community control, and revocation for non-payment of costs requires a finding of ability to pay.
Appellant's community control was revoked based on testing positive for cocaine, being in arrears on community service hours, and being in arrears on …
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SHIVERS, Chief Judge.
Appellant contends his community control was improperly revoked. We agree.
An affidavit of violation of community control was filed against appellant, who had been ordered to pay $240 court costs and perform 100 hours of community service. The affidavit listed three counts: (1) possessing and testing positive for cocaine, (2) being 90 hours in arrears of community service, and (3) being $80 in arrears of court costs.
A community control officer testified that appellant admitted using cocaine “a long time ago;” and a lab report indicating appellant recently tested positive for cocaine was admitted over a hearsay objection. Appellant testified he had not used cocaine since he had been on community control. The trial court found that counts (1) and (3) were proved by a preponderance of the evidence and that count (2) was not. Appellant’s community control was revoked and he was sentenced to prison.
“[T]he lab test report, standing alone, is hearsay. Although it may be admitted at a revocation hearing, it alone cannot be the basis to find a violation [of community control].” Williams v. State, 553 So. 2d 365, 366 (Fla. 5th DCA 1989). While the testimony of appellant and the community control officer is not hearsay, it does not prove a violation by the greater weight of the evidence. See McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988). The lab report was therefore hearsay standing alone and was an improper basis to find that appellant violated the conditions of community control.
The trial court made no specific finding that appellant had the ability to pay court costs; and therefore community control should not have been revoked based on failure to pay court costs. McPherson, 530 So. 2d at 1098.
REVERSED.
SMITH, J., concurs.
NIMMONS, J., dissents.
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Robinson v. State, 609 So. 2d 89 (Fla. 1st DCA 1992)…lation by competent evidence. Specifically, Robinson alleges that the only evidence of the nature of the “pills” discovered in the search was the hearsay lab report, and points out that revocation cannot be based solely on hearsay, Whisler v. State, 569 So. 2d 934 (Fla. 1st DCA 1990). Proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking community control. The state need only show by a preponderance of the evidence that the defendant committed the…
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Vezina v. State, 644 So. 2d 602 (Fla. 1st DCA 1994)…say evidence failed to prove this violation by the greater weight of the evidence. Accordingly, the statements at issue are hearsay standing alone and constitute an improper basis for finding this second violation of Condition (8). Whisler v. State, 569 So. 2d 934 (Fla. 1st DCA 1990) (finding an improper revocation of community control where trial court relied on hearsay lab report and testimony of appellant and his officer failed to prove violation by greater weight of evidence). We are constrained by the c…
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Player v. State, 949 So. 2d 306 (Fla. 1st DCA 2007)…ceived a sheet from a drug program indicating that appellant’s urine test was positive. This document was never entered into evidence. The testimony from the probation officer standing alone will not support a finding of violation. Whisler v. State, 569 So. 2d 934 (Fla. 1st DCA 1990); but see Peters v. State, 919 So. 2d 624 (Fla. 1st DCA 2006); Davis v. State, 562 So. 2d 431 (Fla. 1st DCA 1990) (holding lab report properly admitted as business record supported finding of violation of probation). We, therefo…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)
- Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989)